A political philosopher's reflections on politics, philosophy, science, medicine and law.
"Enlightenment is man's emergence from his self-incurred immaturity" (Immanuel Kant, 1784).

Thursday, March 15, 2012

Punishment and Incarceration (Part 2)

This post follows on from my previous post on punishment and incarceration (Part 1 is here).

Before I begin to explore the justifications of punishment (which will be the focus of the next few posts), let's begin with some statistics about prisons and incarceration in the United States.

This website is very useful, it contains the "Prison brief" which has data on prisons and the incarcerated around the world.

The estimated prison population for the United States is 2,266,832. This figure is truly staggering. Compare how the US (ranked #1 in prison population in the world) fares to Canada (ranked #42 by prison population), a neighbouring liberal democracy. For every 100,000 people, the United States has 730 inmates, whereas in Canada the number is 117 inmates per 100,000 people. This means there over six inmates in prison in the US for every one inmate in Canada. The US has over 5000 institutions and the capacity of these institutions to house inmates is estimated to be at 110.1%. In other words, the cup of criminal justice in the US "overfloweth"!

The estimated costs of police protection, corrections, judicial and legal services in the US for the year 2007 was $228 billion.

What explains the dire situation [I'll say more in a future post about why I think it is accurate to describe it as dire] of criminal justice in the US? The answer is extremely complex, and I myself wouldn't be able do justice to the complexity of issues that arise in this context, and certainly not in a blog post. But there are a number of considerations worth keeping in mind. So let's briefly review a few, but by no means all, of these here.

Firstly, and perhaps most importantly, we must be careful not to make the hasty and faulty assumption that a high prison population rate necessarily means that a society has a higher rate of criminals in the population compared to other countries. Why not? Well, for a number of reasons.

1. One society might be much more successful in detecting, capturing and prosecuting criminal offenders. This might explain part of the reason why it has a higher prison population rate than a country that is less successful in enforcing criminal justice.

2. The size of the prison population will represent the severity of the punishment a country sanctions. So two countries might have similar rates of crime, but if country A imposes an average of 10 years incarceration for offence X, and country B only imposes 5 years for the same offence, then country B will have less inmates even though they have comparable rates of crime.

3. Countries vary in terms of what they deem to constitute "criminal activity". Country A might tolerate prostitution and drug use, for example, while country B makes these same activities a criminal offence punishable by incarceration. The fact that country B has a higher prison population rate does not necessarily mean that the population in country B are "depraved" in ways that the population in country A are not, it might reflect the fact that different kinds of behaviour are tolerated in one country but not in another.

Secondly, the current state of criminal justice in the US is the culmination of many distinct cultural factors that make the US an outlier when compared to other democratic states, like France and Germany for example. A historical comparison of the US and Continental Europe is the focus of this excellent book which I just finished reading. In addition to factors like racism, fierce Christian beliefs, etc. Whitman argues that the divergence between America and Continental European approaches to punishment over the past 25 years reflects the different patterns of egalitarian social status they have pursued in punishment and patterns of resistance to state power. The first point is what interests me most, so I will limit my discussion here to that point.

Whitman contends that Continental Europe had a tradition of treating "high" and "low" status offenders differently. The latter were subjected to degrading punishment (e.g. mutilation, shaming, etc.) and were effectively seen as slaves, while the former would not be subjected to these same degrading measures. As this hierarchy in Europe began to unravel over the 19th and 20th centuries, the application of criminal justice moved in the direction of treating all like "high status" rather than "low status" offenders. So they pursued a "levelling up" approach to punishment. This approach means that punishment in these countries is pursued in a manner that is more compatible with human dignity. Prisoners are addressed as "sir", they can wear their own clothes or clothing that resembles the clothing of non-inmates, they are allowed (indeed encouraged) to vote and exercise their political rights, they can work, maintain family relations, have cells with no peep holes and guards are expected to knock before entering, etc.

The situation in US prisons is very different. Because the US did not have the kind of embedded two-tiered system of hierarchical punishment which pervaded Continental Europe, the US went the route of "levelling down" with respect to punishment. Equal treatment for all prisoners meant all were to be subjected to the same degrading treatment typical of those accorded "low status" in society. The lack of an aristocratic element in American culture explains why degradation is such an intricate part of American-style criminal justice.

The punishment of offenders in the US is also regularly treated as a topic to be determined by "populist justice". If a politician is perceived to be "soft on crime" that is a serious liability. Just this morning I was struck by the media coverage CNN has given to the story below, which effectively illustrates Whitman's point that Americans treat punishment in a populist way that plays into the worse elements of our primal retributive sensibilities.

Unlike France and Germany, where bureaucratic control over the administration of criminal justice is protected from public scrutiny, the American system is guided by the worse elements of democratic politics-- the primal retributive sensibilities of a demos that is ill-informed about the true causes of crime in their own society and yet are more than eager to demand "tough justice" be imposed upon criminal offenders of various kinds, including juvenile and non-violent offenders.

Whitman's masterful comparative analysis of punishment in the US and Continental Europe reveals how degrading and harsh American criminal justice is (at least relative to France and Germany). In the next post I will turn to my main task of critiquing the philosophical justification of punishment that has helped legitimize American style criminal justice- retributivism. I will argue that, paradoxically, the route taken by American style retributivism (i.e. longer prison sentences for a host of criminal offences) does not actually have the intended impact it aspires to have (namely, to inflict more suffering upon inmates). However, even though longer prison sentences does not reduce the happiness of inmates, it does adversely affect their welfare (e.g. life expectancy, health, status in society). I will argue that these facts create a number of difficulties for retributivism. The first point suggests that longer prison sentences do not achieve the proportionality of punishment that justice that retributivism mandates. The latter, I will argue, suggests that the attempt to realize retributivist aspirations, while ineffective in some ways, overextends in others (by adversely harming the welfare of offenders). We would be better positioned to redress these problems if we abandon retributivism as the central justification for punishment and invoke instead the moral education theory of punishment. More to follow later.